You may recall that I was the named plaintiff in a lawsuit filed in January 2022 in the Nothern District of New York against the NY State Health Commissioner over state health guidelines that prioritized non-whites for receipt of oral Covid therapeutics, which at the time were in short supply:
9. New York’s policy creates a racial hierarchy in the distribution of life-saving COVID-19 medication. Non-white and Hispanic/Latino individuals who test positive for COVID-19 automatically qualify for oral antiviral treatments, while an identically situated non-Hispanic/Latino white individual is ineligible unless he demonstrates a “medical condition” or “risk factor” that increases his risk for severe illness from COVID-19.* * *21. The Department’s policy fails any level of constitutional scrutiny. Even if the Department has an interest in ensuring that only the most at-risk patients will receive scarce antiviral treatments, the policy’s racial preferences are not closely or narrowly tailored to achieving that interest. The Department could have effectively pursued the same goals through the obvious race-neutral alternative of requiring all patients to have enumerated medical conditions or risk factors in order to receive antiviral treatments.
There was another case filed in the Eastern District of New York asserting similar claims (the “Roberts Case”).
Both cases were dismissed for lack of standing by separate judges, which rulings were affirmed by the Second Circuit. That standing decision required a plaintiff to contract Covid, be medically eligible, and be in a position to seek the medicine, before suit. Legally and substantively it’s an idiotic standard because the medication was only effective if taken within five days of symptoms. So the courts set up a standing requirement that almost no one could meet as a practical matter because of the tight time frame to seek judicial relief. The courts gave health officials almost unbridled authority to engage in racist conduct as to emergency medical treatments.
As medicine falls deeper under the sway of Critical Race Theory, this portends a bleak future. Indeed, almost the entire medical establishment from the American Medical Association on down backed the state.
We decided not so seek Supreme Court review, because it was viewed as nearly impossible to convince SCOTUS to take a case where the Covid health crisis had passed and the medications no longer were in short supply. The case was not technically moot, because it was capable of repetition (indeed, the state never withdrew the guidelines). Nonetheless, SCOTUS is so limited in which cases it takes, a stale dispute seemed unlikely to be accepted.
After the deadline passed to file for SCOTUS review, I came to regret not trying and it’s haunted me since. It’s unlike me to give up, and though the rational me agreed with the assessment that it was futile, I still wish I tried.
The plaintiffs in the Roberts Case, however, did file a Petition for a Writ of Certiorari (docket), making many of the points we would have made.
On June 30, 2023, SCOTUS denied the Petition in the Roberts Case. But Justice Alito joined by Justice Thomas issued a Statement in connection with the denial, which reads in full (emphasis added):
The petition for a writ of certiorari is denied.
Statement of JUSTICE ALITO, with whom JUSTICE THOMAS joins, respecting the denial of certiorari.
The circumstances underlying the dispute below have long since come and gone, and I therefore agree with the Court’s decision to deny review. But I write to note that this case involves an issue of ongoing importance: whether the Equal Protection Clause permits governments to use race or ethnicity as a proxy for health risk and therefore “prioritize the treatment of patients” on that basis. Roberts v. Bassett, 2022 WL 16936210, *3, n. 2 (CA2, Nov. 15, 2022) (Cabranes, J., concurring) (noting the “portentous legal issues” implicated by such policies).
When “several new COVID–19 treatments for high-risk patients” were approved in late 2021, the treatments were “briefly in short supply” relative to need. Id., at *1 (summary order). New York State “instruct[ed] providers to follow” its guidance on “higher priority risk group[s]” so long as the “supply shortage persisted.” Ibid. Echoing similar guidance from the federal Centers for Disease Control and Prevention, the State’s guidance specified that “ ‘[n]onwhite race or Hispanic/Latino ethnicity should be considered a risk factor’” when prioritizing patients. Id., at *1, *3 (alteration in original); Roberts v. Bassett, 2022 WL 785167, *2 (EDNY, Mar. 15, 2022). The State justified the use of race and ethnicity as proxies for health risk by appealing to “‘longstanding systemic health and social inequities.’” Roberts, 2022 WL 785167, at *2.
As we have stated many times and have recently reaffirmed, the Equal Protection Clause places a “daunting” obstacle in the way of any government seeking to allocate benefits or burdens based on race or ethnicity, typically giving way only when the measure in question is “ ‘narrowly tailored’ ”—that is, “ ‘necessary’ ”—to “remediat[e] specific, identified instances of past discrimination that violated the Constitution or a statute.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U. S. ___, ___ (2023) (slip op., at 15). Therefore, government actors may not provide or withhold services based on race or ethnicity as a response to generalized discrimination or as a convenient or rough proxy for another trait that the government believes to be “‘characteristic’” of a racial or ethnic group. Id., at ___ (slip op., at 20).
Under that precedent, New York’s general reference to “longstanding systemic health and social inequities” would not have sufficed to allow the State to deny a person medical treatment simply because that person is viewed by the State as being a member of the wrong racial or ethnic group. The shortage at issue in this case appears, thankfully, to have concluded. But in the event that any government again resorts to racial or ethnic classifications to ration medical treatment, there would be a very strong case for prompt review by this Court.
I was in the wrong place at the wrong time to challenge the racist garbage sweeping medicine. A great evil has taken over the medical profession and public health bureaucracy, something we have documented at CriticalRace.org and will continue to document. If the right case and a plaintiff with standing comes along, we also will challenge racist medical guidelines through the Equal Protection Project.
We know that at least two of the Justices are interested in hearing a case of medical racism in the right procedural posture.
Next time. Next time.
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